Friday, February 1, 2013

Is the history of freedom of speech relevant to the current debate in Australia?

Free speech is certainly in the news in Australia. Early in
the week we had the reaction to Tim Mathieson's suggestion that the best way to
have your prostrate digitally examined would be to 'perhaps look for a small,
Asian, female doctor'. I thought George Brandis, shadow attorney-general,
struck the right note when he responded:

'I don't think we want to have in this country a culture of
finger-wagging and confected outrage every time someone says something that
might be better left unsaid'.

A day or so later, Nicola Roxon, the attorney-general (A-G),
backed away from the 'offensive behaviour' provisions of her draft
anti-discrimination bill, saying that the main purpose of the bill was to
simplify and consolidate discrimination laws and that it 'has never been the
government's intention to restrict free speech'. That seems to imply that
inclusion of the offensive behaviour provision was due to the Minister's incompetence.
I suspect, however, that the A-G knew exactly what she was doing and that she
still intends to reinforce the restrictions on free speech in existing
discrimination laws.

In an opinion piece in 'The Australian' on Jan. 10, the A-G
suggested: 'telling a female staff member "shorter skirts would be better
for all girls in the office" might well breach discrimination laws'. I am
prepared to accept her word for that, but the example seems to me to raise questions
about the desirability of discrimination laws that restrict speech to that
extent.

Should anti-discrimination law be applied whenever men refer
to their adult female work colleagues as girls (or women refer to their male
work colleagues as boys, or even 'old boys') and make mildly sexist remarks
about their clothing. I imagine that most males who might use words such as
those quoted by the A-G would be intending to engage in good-humoured banter
with female colleagues - whom they consider as equals, in the sense of being
capable of 'giving as good as they get'. (Foreign readers should understand
that friendly exchanges of mildly offensive remarks are a characteristic of
Australian culture.) Of course, those who make sexist comments, even in jest,
run the risk that work colleagues will consider their behaviour unacceptable
and ask for an apology.

That is my point. In modern Australia, when people working
in offices find themselves subjected to objectionable speech, they do not need
to threaten legal action to ensure that perpetrators suffer humiliating consequences.
The A-G apparently thinks threats of legal action are the most appropriate
response to bad manners.

In the same article, the A-G suggested her aim is to 'get a
tricky balance right' by ensuring that freedoms are subject to 'appropriate
limits that provide protection in certain circumstances'. She gives the
impression that she accepts free speech as the rule, with restrictions only to
be imposed in certain circumstances. Yet, her proposed bill reverses the normal
burden of proof. Those accused of discrimination bear the onus of proving that
their speech has not been for alleged purposes that are contrary to the
discrimination legislation.

Politicians might be less keen to use the coercive powers of
the state to enforce their notions of political correctness if they read In Defence of Freedom of Speech, by Chris
Berg. The main point to emerge from the book is that freedom of speech is at
one with freedom of thought. When governments restrict freedom of speech they
interfere with the rights of individuals to express themselves. The heroes of
Berg's story, Benedict Spinoza and Benjamin Constant, did not confine
themselves to support for politically correct speech.

Benedict Spinoza (1632-1677) argued that the presumption
should be on protecting freedom of expression rather than limiting it, even
though espousal of some doctrines could have negative consequences for society.
He blended two arguments for freedom of expression: the natural rights argument
that the state cannot control thoughts; and the pragmatic argument that
attempts to do so creates more problems than it solves. In relation to the
latter point he noted that states which limit freedom find their regulations
abused by interest groups seeking to benefit at the expense of others.

Benjamin Constant (1767-1830) also admitted the possibility
that free speech 'may corrupt manners or shake the principles of morality', but
he argued that people 'should be taught to preserve themselves from these
dangers by their own efforts and reason'. Constant suggests that governments
that try to enforce uniform belief encourage hypocrisy and resistance:

'To prop up an opinion with threats invites the courageous
to contest it'.

Berg acknowledges the contribution to development of free
speech by a range of other people. He points out, however, that many of those
who have been widely quoted as supporters of free speech were only prepared to
advocate freedom of speech under certain circumstances or for certain groups of
people.

My only qualification about this book is that I would like
to have seen greater recognition of defamation as a legitimate reason for restriction
of freedom of speech. At one point, Berg suggests:

'The analogy between property and reputation is widely used
but deeply incoherent'.

I disagree. Damage to the reputation of a person or business
is equivalent to loss of property. This is most obvious when damage to the
reputation of a public company results in a decline in its share price. In many
other instances there is a loss of future earnings and/or additional costs
incurred that have an assessable monetary value. It seems to me that the
relevant issue in relation to defamation is whether individuals or firms have a
right to expect the state to defend their reputations. Those who have unwarranted
reputations for good conduct, should not have those reputations defended by the
state.

Overall, however, this bookseems to me to provide an excellent account of the evolution of
free speech in western civilization.

Postscript:

Soon after this post was written, Nicola Roxon resigned from
the position of Attorney-General. We will have to wait and see what that means
for the future of free speech in Australia. As James Patterson has noted, the
new Attorney-General, Mark Dreyfus is on the record as saying that he considers
18C of the Racial Discrimination Act - the section apparently contravened by
Andrew Bolt - is a good law.

I haven't studied the Bolt case, but the judgement does
seem to have muffled public discussion of the question of how aboriginality
should be defined for public policy purposes. I suspect that potential
commentators are now concerned that if they openly express their genuine
beliefs on such matters of public interest, they might be required to prove
that their remarks constitute fair comment.

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Emancipation

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